Page:Intel, Apple, Google, Microsoft, and Facebook - Observations on Antitrust and the High-Tech Sector.pdf/3

First, let me be clear about a legal point. While I have said that in merger cases, market definition is not a “gating” or threshold issue in the sense that the agencies have to prove a relevant market before it can look at a merger’s competitive effects,^[1] I do not believe that the agencies in merger or conduct cases can avoid defining a relevant market altogether.^[2] In the Section 7 context, the statute plainly requires that we define a relevant market.^[3] And in conduct cases, the case law requires that we at least define the “rough contours” of a relevant market. Nevertheless, as I explained in my concurring opinion in Evanston, I believe that the market can be defined by reference to competitive effects.^[4] Second and more generally, as a matter of proof, multi-sided markets are not new. To the contrary, I think it’s safe to say that officials at both agencies would agree that multisided markets describe newspapers, television networks, radio stations, and advertising more generally, with which the agencies have a long experience. These multi-sided markets differ only in that the business models of firms trying to attract consumers differ; for example, Google offers information search capabilities, Apple offers “Apps” (among other things, games), and Facebook offers communication with “friends.”

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1. Commissioner J. Thomas Rosch, “Litigating Merger Challenges: Lessons Learned,” Remarks presented at the Bates White Fifth Annual Antitrust Conference (June 2, 2008), available at http://www.ftc.gov/speeches/rosch/080602litigatingmerger.pdf.
2. Concurring Statement of Commissioner J. Thomas Rosch on the Release of the 2010 Horizontal Merger Guidelines, available at http://www.ftc.gov/speeches/rosch/100819horizontalmergerstatement.pdf
3. In the Matter of Evanston Northwestern Healthcare Corp., Docket No. 9315, concurring opinion of Commissioner J. Thomas Rosch at 8-9 (Aug. 6, 2007), available at http://www.ftc.gov/os/adjpro/d9315/070806rosch.pdf.
4. In the Matter of Evanston Northwestern Healthcare Corp., Docket No. 9315, concurring opinion of Commissioner J. Thomas Rosch (2007), available at http://www.ftc.gov/os/adjpro/d9315/070806rosch.pdf.

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